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Land Reclamation in the South China Sea: Possibility of Invoking Judicial Dispute Settlement Mechanisms

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Land Reclamation in the South China Sea: Possibility of Invoking Judicial Dispute Settlement Mechanisms Faculty of Law Academic Year 2015-2016 Exam Session [1] LAND RECLAMATION IN THE SOUTH CHINA SEA: POSSIBILITY OF INVOKING JUDICIAL DISPUTE SETTLEMENT MECHANISMS LLM Paper By Nguyen Thu Giang Student number: 01503708 Promoter: Prof. Dr. Frank Maes ACKNOWLEDGMENTS First and foremost, I would like to express my heartfelt gratitude for my supervisor, Prof. Dr. Frank Maes - Research Director of the Maritime Institute of Ghent University for his inspiring and stimulating discussions about the topic of my thesis. Indeed, his dedication to my thesis gives me great impetus to complete it. I also would like to extend my thanks to my Dean and vice Dean of International Law Faculty at Diplomatic Academy of Vietnam, who provided me with the knowledge about international law of the sea, setting ground for my research on the issue of my thesis. Last but not least, my family and my friends indeed are those I always desire to say thanks to. Their unwavering support and consistent encouragement help me overcome the challenges during the days I have lived and studied in Belgium. Without them, I cannot go so far as I do today. TABLE OF CONTENTS TABLE OF ABBREVIATION ............................................................................................. iii INTRODUCTION.................................................................................................................... 1 CHAPTER I. LAND RECLAMATION IN THE SOUTH CHINA SEA ........................... 4 I. Factual background concerning land reclamation in the South China Sea……….5 1. Location of reclamation works in the South China Sea ........................................ 5 2. States involving in land reclamation in the South China Sea and their reclamation activities .......................................................................................................... 10 3. Possible purposes of land reclamation in the South China Sea .......................... 11 4. Responses from states and international community .......................................... 13 II. Some legal issues concerning land reclamation in the South China Sea……………………………………………………………………………………...…….14 1. Legal status of reclaimed features ....................................................................... 15 2. Title to territory of reclaimed features ................................................................ 16 3. Legitimacy of reclamation activities in the South China Sea ............................. 17 4. Possible legal effects of land reclamation on the status of reclamied features in the South China Sea ............................................................................................................ 18 CHAPTER II. THE UNCLOS REGULATIONS CONCERNING LAND RECLAMATION AT THE SEA AND THEIR APPLICATION IN THE SOUTH CHINA SEA ........................................................................................................................... 19 I. Legal status of maritime features……………………………………….…………..19 1. Islands and rocks ................................................................................................. 19 2. Low-tide elevations ............................................................................................. 23 3. Possible effects of land reclamation activities on the legal status of reclaimed features………… ................................................................................................................ 24 II. State obligations on disputed areas in the sea………………………………….. ..24 1. State obligations in disputed area due to sovereignty disputes on islands .......... 24 i 2. State obligations in disputed area due to overlapping EEZ and continental shelf claims…….. ........................................................................................................................ 25 III. Protection and preservation of the maritime environment…………………... ..29 1. Obligation to protect and preserve the maritime environment ........................... 29 2. Obligation to cooperation for the protection and preservation of the maritime environment......................................................................................................................... 31 3. Obligation to conducting an environment impact assessment ............................ 32 CHAPTER III. POSSIBILITY OF INVOKING DISPUTE SETTLEMENT MECHANISMS IN CASE OF LAND RECLAMATION IN SOUTH CHINA SEA UNDER UNCLOS .................................................................................................................. 33 I. Dispute settlement mechanisms under UNCLOS and the choice of dispute settlement mechanism in case of land reclamation in the South China Sea………....... ..35 1. Dispute settlement mechanism under UNCLOS ................................................ 35 2. The choice of dispute settlement mechanism in case of land reclamation in the South China Sea .................................................................................................................. 39 II. Possible questions submitted to the Tribunal……………………………………. ..40 1. Criteria to choose questions ................................................................................ 40 2. Application such criteria in case of land reclamation in the South China Sea ... 40 III. Jurisdiction and admissibility of the Tribunal……………………………..........42 1. Preconditions to the Tribunal’s jurisdiction ........................................................ 43 2. Limitation and exceptions to the Tribunal’s jurisdiction .................................... 46 IV. Other possible means in case of the disputes concerning land reclamation……...47 CONCLUSION ...................................................................................................................... 50 BIBLIOGRAPHIES .............................................................................................................. 52 ANNEX ................................................................................................................................... 60 ii TABLE OF ABBREVIATION CBD Convention on Biological Diversity DOC Declaration on the Conducts of Parties in the East Sea EEZ Exclusive Economic Zone EIA Environmental Impact Assessment ITLOS International Tribunal on the Law of the Sea UN United Nations UNCLOS 1982 United Nations Convention on the Law of the Sea iii INTRODUCTION Over all the time periods, territory remains an invaluable property to all states. It has a significant meaning for national security, economic development, trade exchange and expansion of national influence to every state. States therefore always find methods to enlarge their territories as much as they could do. In order to do so, wars, conflicts and other forms of violence were used as key tools by tribes and states since ancient times. For example, during his lifetime (1162-1227), Mongol leader, Genghis Khan conquered huge chunks of central Asia and China by his armies, or during Napoleonic war (1803-1815) Napoleon expanded French Empire as well as French territory over the majority of Europe. After the World War II, these methods are, however, prohibited in the relations among sovereign states because the prohibition to use force or threat to use of force is a fundamental principle of international law.1 This nevertheless does not mean that states abandon ambitions to maximize their territories, evidenced by the long-lasting territorial disputes. Against that context land reclamation, a kind of land expansion activities emerged as an effectively alternative method for states to achieve such ambitions. Indeed, land reclamation has become the main method for states like Singapore, Monaco, Bahrain and the Netherlands to “grow up” in the terms of their territories. For instance, over the past half-century, Singapore has added onto its total area by a whopping 22 percent, by adding onto the island using earth obtained from quarries, the seabed, and rock;2 or in the Netherlands, its surface area has increased by approximately 10 percent since the 14th century, thanks to land reclamation.3 The same attempt seems to be made by the states bordering the South China Sea, a semi-enclosed sea in Southeast Asia when they have constructed land reclamation works in this sea. This does not come as a surprise because the South China Sea not only possesses a high storage of natural resources but also has a strategic geographical location for the maritime commerce and national defense of the coastal states in the region. Interestingly, instead of undertaking land reclamation in the states’ territories like the Netherlands and Singapore, China, Taiwan, Malaysia and Viet Nam have carried out their reclamation works 1 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(4); UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV). 2 Kuschk, ‘Reclaimed Land in Singapore: Nation-Building in the Most Literal Sense’ The Basement Geographer (03 February 2011) <http://basementgeographer.com/reclaimed-land-in-singapore-nation-building-in-the-most- literal-sense/> accessed 22 February 2016. 3 Introducing the Western Netherlands, <http://lef.uprm.edu/Historical%20investigation/pdf%20files/Holanda%208%20Reclaimed%20land.pdf> accessed 8 May 2016. 1 at the disputed maritime features and water in the South China Sea, over which they all claim sovereignty.
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